Civil and Commercial Mediation

Mediation is the process by which parties seek to settle their civil or commercial disputes with the assistance of an independent third party, a mediator.

Mediation is voluntary

No-one can force you to attend a mediation. This does mean that both parties must want to mediate or at least be prepared to give it a try. Hopefully your opponent, as well as yourself, has made themselves aware of the many benefits of both mediation and a mediated settlement, and so a situation where someone refuses to mediate should be uncommon - but it's not compulsory.

However: a warning to anyone refusing to engage in mediation. If you are involved in court proceedings and are deemed to have unreasonably refused to mediate, the court is likely to penalise you in costs in some way, whether you have won or lost.

Mediation is confidential

This is helpful in keeping your business private. All parties agree not to talk about what goes on during the mediation to the outside world (unless part of your settlement says otherwise). Confidentiality also plays an important role on the day of mediation itself. If the parties are split in different rooms, as is likely at some point in the day, anything you say to the mediator will not be taken into the other room, unless you specifically instruct the mediator to do so. This principle is at the foundation of the mediation process and why it proves successful on so many occasions.

What happens before the day?

For most disputes, preparation for mediation is pretty simple. It is best to mediate as soon as possible. Once a date and a venue have been agreed, the parties will be asked to supply the mediator with the most important documents (relating to the dispute), and a summary of what they believe the case is about and, if they want, how they think the case should settle. In cases involving companies or partnerships, it is also very important to have the people who have the authority to “make the deal” present on the day.

What happens on the day?

The mediation process belongs to you. The parties therefore have a large say as to how the day goes. Sometimes the day starts with a joint session. This can be helpful to iron out any misunderstandings or just to let people get things off their chest. Sometimes, tensions are so high that a joint session should not be entertained. Thereafter, the parties may well be housed in separate rooms and the mediator will shuttle between the two, until a solution is reached.

There may well be times during the day that it seems as if we are getting nowhere fast. Don't worry. Your mediator will have seen many such moments in the past and still have reached a settlement for the parties. Keep your mind on the task at hand - your mediator will do everything possible to find a settlement for you.

If and when a settlement is reached, the terms are set down in writing and signed by the parties. The agreement is binding. If court proceedings have already commenced, the agreement will take the form of an order that will then be lodged with the court.

Of course, sometimes settlement is not achieved. That is the right of anyone attending mediation. However, the process is “without prejudice” so nothing said in trying to reach agreement during the day can be used in court. And many disputes that do not settle on the day still get settled shortly after or at least before trial.

That's Mediation!

For an entertaining and informative look at mediation, click here to view our "That's Mediation" video on our YouTube channel.

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‘As a mediator, clients have said, “Mr Fitch was retained as a Mediator in a very awkward dispute between potential beneficiaries of an Estate. Notwithstanding the very emotional nature of the mediation from both parties and the high principles at stake, Mr Fitch handled the mediation with total professionalism using exactly the right approach on each and every occasion he met with the parties and their representatives to broker a final resolution of the matter. I would have no hesitation in recommending Mr Fitch as a mediator."’